"In addition to the development standards required by the primary land use
district, the establishment of noise sensitive uses and the creation of new
parcels that are eligible for a dwelling within Mineral and Aggregate
Overlay District B shall be subject to the following.

"* * * * *

"379-14.2 Noise Reduction Measures:

"Noise reduction measures may be required of the owners of
new noise sensitive uses constructed after the establishment
of District B when determined by the Review Authority to be
necessary to ensure compliance by the District A use with
applicable noise regulations. Noise reduction measures may
include, but not be limited to, vegetative buffers, berms, walls,
insulation and orientation of windows, and shall be
determined by the Review Authority."

The county and intervenor argued below, as they do here, that the approval
of relators' application is subject to the quoted and cited provisions of CDC section 379,
as well as the provisions of CDC section 350. Although the latter provisions relate to the
rural residential district and CDC 350-6.1(c)(4) requires consistency with the "intent and
purpose of this district," the county and intervenor assert that the emphasized word must
include the intent and purpose provisions of the overlay district as well as those for the
primary district to which CDC 350-6.1(c)(4) directly relates. They reason that the overlay
district, as well as the primary district, is, in fact, part of the same physical location as this
particular rural residential area and, further, that the "intent and purpose" provisions of
the overlay district would be eviscerated if they were inapplicable to situations such as
this one. Intervenor and the county also contend that CDC 379-14.2 is applicable to
relators' application by its terms and that the proposed subdivision cannot comply--or was
not shown to be capable of compliance--with its requirements of mitigating noise from the
quarry operations. Finally, the county and intervenor assert that the trial court should
have deferred to the interpretation of the county provisions in the April 2 order, regardless
of how the court itself might have interpreted the provisions independently.

The county argues in its second assignment of error and intervenor argues
in its only assignment that the trial court erred in its interpretation and application of the
various code provisions. As summarized above, they maintain that the intent and purpose
section of the overlay district, CDC 379-1, is implicitly incorporated by the reference to
this district in CDC 350-6.1(c)(4). We find the argument to fail as a matter of law. It is
difficult to imagine a term that is less open to the implication that it includes something
beyond its specific referent than the word "this." The provisions in CDC section 350
relate to a particular kind of rural residential district. Like any other kind of zone, it can
be subject to overlay zoning. That does not, ipso facto, make all of the local provisions
that pertain to the overlay district applicable to all of the uses--or their approval--in the
primary zone.

That, of course, is not to say that the provisions pertaining to the primary
zone, the overlay zone, or both, cannot be reciprocally or mutually applicable or cannot
specify whether and to what extent they are. However, nothing in CDC 379-1 suggests
that it is applicable as an approval criterion for uses in the primary residential zone.
Notably, that is in marked contrast to CDC 379-14, which expressly makes its provisions
applicable "[i]n addition to the development standards required by the primary land use
district[.]" Hence, when they intended to do so, the drafters of the county's code knew
how to make the overlay district provisions applicable as approval criteria for uses in the
primary district, as they did in CDC 379-14, and did not do in either CDC 350-6.1 or
CDC 379-1.

As indicated, however, CDC 379-14 is applicable to relators' application by
its terms, and intervenor and the county argue that the allowance of the proposed use is
contrary to the part of that provision codified as CDC 379-14.2. The trial court heard
conflicting expert evidence and found that the noise mitigation requirements of CDC 379-14.2 could be satisfied through the use of barriers. Intervenor's argument consists, in the
main, of a recitation of the evidence at trial and uncharitable characterizations of relators'
evidence and the trial court's findings.

However, intervenor's starting premise is that our review in this mandamus
case is de novo. That premise is wrong, and intervenor's argument collapses with its
premise. An uninterrupted parade of Oregon Supreme Court and Court of Appeals cases,
dating at least from Beard v. Beard, 66 Or 512, 521, 133 P 797, 134 P 1196 (1913),
through State ex rel Curry v. Thompson, 156 Or App 537, 541, 967 P2d 522 (1998), hold
that mandamus proceedings are actions at law and that the appellate courts review the
findings in them to determine if they are supported by any evidence. See also ORS
34.240. The cases on which intervenor bases its contrary understanding have nothing to
do with the scope of appellate review of the findings.

The county argues further that the trial court erred in that the standard it
applied to the CDC 379-14.2 issue was whether the requisite noise mitigation measures
were possible, while the appropriate standard was the putatively more exacting one,
endorsed in the governing body's April 2 order, of whether they were feasible. However,
especially given its apparent view that ultimate compliance with CDC 379-14.2 cannot be
measured until the new lots are sold and actual residential development is undertaken, the
county offers no explanation--aside from dire predictions--as to why the text and context
of the code provision better lend themselves to a "feasibility" than to a "possibility" test.
Moreover, the county postulates but offers no reason why a different result could follow
in this case under the word it chooses than under the one the trial court chose. Much as
the county and intervenor may regard the trial court's hay barrier solution as an object of
derision, one term that does appear in the text of CDC 379-14.2, as an example of a
satisfactory mitigation measure, is "vegetative buffers"--a term that is fully consistent with
the evidence and the finding that the hay barriers could suffice. See State ex rel Lowell v.
Eads, 158 Or App 283, 287-88, P2d (1999). We agree with the trial court's
interpretation and application of the code provisions.

The county argues,(5) however, that the trial court should not have interpreted
the provisions independently but, instead, should have deferred to the governing body's
interpretation of them in its April 2 order. The county contends that the deference
principle of ORS 197.829, Clark v. Jackson County, 313 Or 508, 836 P2d 710 (1992),
and Gage v. City of Portland, 319 Or 308, 877 P2d 1187 (1994), should apply in
mandamus proceedings under ORS 215.428(7) (and ORS 227.178(7), the analogous
statute applicable to cities). The county recognizes that we rejected precisely the same
contention in State ex rel Currier v. Clatsop County, 149 Or App 285, 290, 942 P2d 847
(1997), but asserts that "this case provides a better forum" than Currier "for addressing
this important issue." The county also recognizes that, in State ex rel Compass Corp. v.
City of Lake Oswego, 319 Or 537, 878 P2d 403 (1994), on which we relied in Currier,
the Supreme Court indicated that the circuit court's role in mandamus cases differs from
that of LUBA in reviewing local land use decisions. According to the county, however,
that difference should apply only to questions of fact, while the circuit courts should
extend the same deference to a governing body's legal interpretations of local enactments
that LUBA must under the Clark principle.

We do not agree with the county's understanding of Compass Corp. The
court said there, in explaining the different principles that apply in the LUBA and
mandamus settings:

"Under ORS 197.829, LUBA must affirm a local government's
interpretation of [local land use] provisions unless it is not consistent with
the express wording, purpose, or policy of those provisions, or of a state law
that those provisions implement. By contrast, under ORS 227.178(7),

'[t]he writ shall be issued unless the governing body shows
that the approval would violate a substantive provision of the
city comprehensive plan or land use regulations as defined in
ORS 197.015.' (Emphasis supplied.)" Compass Corp., 319
Or at 544-45 (footnote omitted).

Thus, the contrast that the court drew in Compass Corp. was between ORS 197.829, the
statute that codifies the Clark principle of deference to local interpretations, and the
affirmative showing that a city or county must make under the applicable mandamus
statute. The clear point of the court's comparison is that the deference to local legislative
interpretations that is required of LUBA by ORS 197.829 does not obtain in mandamus
actions under ORS 215.428 or ORS 227.178.

Moreover, there are two additional reasons why that is so. First, the
deferential principle is a product of statute or statutory construction, and the statutes that
embody it--ORS 197.829 and ORS 197.835(7)(a) as construed in Clark--relate only to the
process by which LUBA and the appellate courts in appeals from LUBA review land use
decisions. Neither statute has any application to circuit court proceedings generally or to
mandamus actions specifically. See Clackamas County v. Marson, 128 Or App 18, 23 n
2, 874 P2d 110, rev den 319 Or 572 (1994).

Second, as explained in Compass Corp.:

"LUBA reviews a local government decision. The predicate for a
mandamus proceeding under ORS 227.178(7) is the local government's
failure to make a timely final decision on an application. Because the local
government has failed to make a decision, the mandamus proceeding is not
a process for 'review' of a local government's decision." 319 Or at 544.

In the absence of a decision, there can, of course, be no authoritative interpretation by the
local decision maker to which deference can be accorded. See, e.g., West v. Clackamas
County, 116 Or App 89, 840 P2d 1354 (1992); Larson v. Wallowa County, 116 Or App
96, 840 P2d 1350 (1992).

"court in its discretion [to] designate a prevailing party and award attorney
fees, costs and disbursements to the prevailing party[.]"

In State ex rel Aspen Group v. Washington County, 150 Or App 371, 946
P2d 347 (1997), rev den 327 Or 82 (1998), we specifically held that attorney fees were
awardable pursuant to that statute in mandamus actions under ORS 215.428(7). See also
State ex rel Compass Corp. v. City of Lake Oswego, 135 Or App 148, 898 P2d 198
(1995) (same in action under ORS 227.178(7)). The county acknowledges as much, but
takes the view that our conclusion in Aspen Group is inconsistent with the Supreme
Court's decision in Murphy Citizens Advisory Com. v. Josephine County, 325 Or 101, 934
P2d 415 (1997). Consequently, the county asks us "to re-examine this issue as [Murphy
Citizens] was handed down during the pendency of the Aspen Group appeal." The
county's point is elusive, because the Murphy Citizens decision preceded and was
discussed at some length in our opinion in Aspen Group, in connection with the precise
issue in question here. See Aspen Group, 150 Or App at 376-77. We adhere to the
conclusion we reached there.

We also held in Aspen Group that awards under ORS 34.210 are subject to
the general guidelines for discretionary statutory attorney fees set forth in ORS 20.075.
Subsection (1) of that statute provides:

"A court shall consider the following factors in determining whether
to award attorney fees in any case in which attorney fees are authorized by
statute and in which the court has discretion to decide whether to award
attorney fees:

"(a) The conduct of the parties in the transactions or occurrences
that gave rise to the litigation, including any conduct of a party that was
reckless, willful, malicious, in bad faith or illegal.

"(b) The objective reasonableness of the claims and defenses
asserted by the parties.

"(c) The extent to which an award of an attorney fee in the case
would deter others from asserting good faith claims or defenses in similar
cases.

"(d) The extent to which an award of an attorney fee in the case
would deter others from asserting meritless claims and defenses.

"(e) The objective reasonableness of the parties and the diligence of
the parties and their attorneys during the proceedings.

"(f) The objective reasonableness of the parties and the diligence of
the parties in pursuing settlement of the dispute.

"(g) The amount that the court has awarded as a prevailing party fee
under ORS 20.190.

"(h) Such other factors as the court may consider appropriate under
the circumstances in the case."

ORS 20.075(2) spells out the factors that a court must consider in setting the amount of
an attorney fee award. ORS 20.075(3) provides:

"In any appeal from the award or denial of an attorney fee subject to
this section, the court reviewing the award may not modify the decision of
the court in making or denying an award, or the decision of the court as to
the amount of the award, except upon a finding of an abuse of discretion."

The county argues that the trial court failed to exercise the discretion
required by ORS 20.075(1), in that it made no finding as to some of the factors and
"applied the wrong standard" as to others. Alternatively, the county asserts that the trial
court abused its discretion in awarding attorney fees.

To facilitate the discussion that follows, we quote at some length from the
trial court's oral comments regarding the attorney fee award:

"So the land owner seeks to have a court order the county to grant
the application or show cause why they shouldn't grant it. And because they
took so long it brought it out of the--because the county took so long it
brought it out of the political realm and into the judicial realm.

"Counsel suggested a requirement was securing a broader public
benefit. It seems to me that the broader public benefit here is to require the
county to act according to law and to act with some dispatch. And that
when they don't, they can't then be heard to say well, we're supposed to act
in 120 but that's okay[,] the law doesn't apply to us. We can act whenever
we get around to it. Even though it's three or four or five times longer than
we are supposed to take to act.

"So it seems to me the broader public benefit here is to require the
county to, as one of the county businesses would say, 'Just do it,' and do it
on time. And so that is one of the broader public benefits to do it on time.

"The statute says that if you don't do it on time there [are] some
things that an applicant can do to force the issue and writ of mandamus is
one of those. * * *

"* * * * *

"So I believe that [the] land owner is entitled--the applicant is
allowed attorney fees in this case as well [as] in 20.075.

"You have--there has been an objection to attorney fees talking about
the conduct of the parties and the transactions or occurrences that give rise
to the litigation. In this case, it's, of course, just the situation of one land
owner trying to prevent another land owner from doing something on that
land owner's property. The applicant's property.

"The objective reasonableness of the claims and defenses[,] I think
* * * everything was reasonable. The extent to which an award of attorney
fees would deter others from asserting good faith claims. And here it seems
to me that the good faith claim is on the part of the applicant, land owner,
and the lack of an award of attorney fees would seem to be to deter others
from asserting their claims or defenses. Whether it would deter others from
asserting meritless claims or defenses it seems to me that about all it would
do here would be to compensate the applicant and to tell the county you've
got to act with some dispatch."

Some of the county's specific points in connection with its challenge to the
sufficiency of the findings on the attorney-fee issue are duplicated in, and will be
discussed in connection with, its assertions that the trial court abused its discretion by
awarding attorney fees. With those exceptions, however, the county's arguments
concerning the findings do not require extensive discussion. The court's oral recitation
was sufficient to impart its rationale for the award under the Supreme Court's decisions in
McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200, on recons 327 Or 185,
957 P2d 1200 (1998), as explicated by us in Wright v. Jones, 155 Or App 249, 253, 964
P2d 1048 (1998).

The county's contention that the court abused its discretion by awarding the
fees has two facets: first, that the award was inconsistent with the "public benefit"
standard for attorney fees under ORS 34.210 that we articulated in State ex rel Pend-Air
v. City of Pendleton, 145 Or App 236, 929 P2d 1044 (1996), rev den 325 Or 45 (1997);
and second, that the award is not supportable under the ORS 20.075(1) factors--at least as
the trial court applied them.

In Pend-Air, the defendant city refused to place an initiative measure on the
ballot on the ground that the procedures that were followed in gathering the petition
signatures violated applicable state statutes. The relators brought a mandamus action to
compel the city to place the measure before the voters. Although the trial court agreed
with the city that the gathering of the signatures had been carried out in violation of the
election statutes, those provisions did not expressly prescribe that the measure should be
kept off the ballot as a consequence. Based on that statutory silence, the trial court issued
a peremptory writ compelling the city to conduct an election on the measure. The relators
then moved for attorney fees under ORS 34.210, but the trial court declined to award
them.

The trial court's ruling on the merits was not challenged on appeal.
However, the relators appealed to us from the court's refusal to award attorney fees. We
affirmed. We first noted, by reference to cases of related kinds, that,

"[w]ithout purporting to identify all pertinent criteria in any
mandamus proceeding, we are persuaded that a prevailing relator's success
in securing a broader public benefit militates in favor of an award of fees
pursuant to ORS 34.210(2)." 145 Or App at 247.

Although we implicitly agreed with the relators that their action had produced a "broader
public benefit," we concluded in effect that that was overcome by other considerations
that militated against an award of attorney fees. We explained, again by reference to
cases from other areas of the law that we found analogous:

"The same functions that could 'properly be ascribed' to former ORS
183.495 could also be properly ascribed to ORS 34.210.
See McKean-Coffman v. Employment Div., 314 Or 645, 650, 842 P2d 380 (1992) ('An
award of attorney fees [when an agency has acted reasonably], while
certainly encouraging to individual litigants as petitioner, could have the
undesirable effect of discouraging agencies from vigorously advocating
reasonable policy positions in the courts.'). Moreover, defendants'
interpretation of the complex of state statutes and local ordinances, which
underlay their refusal to place the initiative on the ballot, was reasonable.
Indeed, the trial court determined that defendants were correct in
concluding that former ORS 250.265(2) and (5) controlled and that relators'
petition and signature sheets did not comply with that statute. Thus, the
court granted relators relief not because defendants had unreasonably
interpreted the law but because

'the legislature * ** has not bothered to give us any indication
as to what should be done if they don't follow the provisions
of the law. It makes a lot of sense to me that all of the
petitions that were circulated should have had that notice on
them but since the legislature * ** does not bother to tell us
what they want us to do, the court feels that, given all of the
circumstances in this case, that the matter should be allowed
to go to the people.'

"Relators prevailed, then, not because defendants' failure to act was
grounded in an unreasonable interpretation of the law, but because the trial
court resolved an extremely close issue of first impression in their favor."
Pend-Air, 145 Or App at 250-51 (footnote omitted).

"The only person who benefitted here was the developer. The public did
not benefit from being excluded from the land development process."

The county argues further that, as in Pend-Air, the "only reason [relators have] won was
because the trial court resolved an extremely close issue," i.e., whether the approval of
relators' application would violate the county ordinances.

The difficulty with the county's efforts to analogize the two cases is that
there is a fundamental difference between Pend-Air and this case. In the former, the
questions of whether the city had a mandatory duty or failed to perform any legal
requirement turned directly on the "close issue" to which our opinion referred. If the
city's understanding of the effect of the election laws on the viability of the measure had
been correct, its actions would have been completely lawful. In this case, conversely, it is
undisputed that the county violated the 120-day requirement of ORS 215.428(1). If the
county were correct about the ancillary question that it regards as a close one here, it
would have had a defense to the compulsory remedy of ORS 215.428(7), but its
underlying violation of ORS 215.428(1) would in no way be altered or obviated.

Moreover, the principal basis for the trial court's decision to award attorney
fees--under the Pend-Air rationale and, as we read its comments, under ORS 20.075 as
well--was that the

"broader public benefit here is to require the county to act according to law
and to act with some dispatch. * * * They can't then be heard to say, well,
we're supposed to act in 120 but that's okay[,] the law doesn't apply to us.
We can act whenever we get around to it."

In other words, the county's violation of the statutory 120-day requirement--and not
anything related to its defense based on its understanding of its land use regulations--was
the reason why attorney fees were awarded against it by the trial judge.

The trial court's reasoning in that respect is very much in accord with our
observations in Aspen Group, where we explained our remand of the award of attorney
fees against an intervenor who had appeared in the mandamus action to oppose the
granting of the relator's application:

"Although plaintiff chose to seek attorney fees only from intervenor,
the fact remains that the county was a party to this action. It was also the
party whose conduct--more than any other's--gave rise to the litigation. It
failed to perform its duty of taking final action on the application within the
time prescribed by law. Insofar as the county's nonfeasance was the
principal reason necessitating the action, the fact that plaintiff has chosen
not to claim attorney fees from the county does not make the consideration
described in ORS 20.075(1)(a) any the less a factor that weighs against an
award of attorney fees from intervenor. If her conduct contributed to the
need for the litigation at all, she was not the sole or main contributor to that
need, and the county's contributing conduct was--in the statute's word--'illegal.' * * *

"* * * * *

"We reiterate that there can be no successful mandamus action under
[ORS 215.428(7)] unless the county has violated the statutory requirement."
150 Or App at 379-80 (emphasis in original; citation and footnote omitted).

We continued, in a footnote:

"A mandamus action under ORS 215.428(7) is not a procedure that
the legislature established to provide counties with an alternative to making
the land use decisions that ORS 215.428(1) and other statutes require. It is
a remedy that the legislature created to deal with circumstances where
counties have failed to make the decisions that those statutes require them
to make." Id. at 380-81 n 7.

The county asserts that its violation of the statutory requirement cannot
appropriately serve as a basis for an award of attorney fees here because, if it could, "each
and every applicant [who brings a successful mandamus action] should get [its] fees.
There is no discretion." The county's premise is wrong. The exercise of discretion and
the appropriate weight to be given the various factors and considerations under the
circumstances of various cases resides in the trial court or other court from which the
award of fees is sought. The fact that attorney fees were awarded against the county here
does not create a universal or invariable rule. In any event, this case is not one in which a
slippery slope argument of the kind the county makes is particularly alluring. Almost
three times the period that the statute allows for a final decision had elapsed before the
county hearings officer's decision was made and intervenor initiated its appeal to the
governing body, where the application lingered for more than 120 additional days before
that body purported to act. Stated another way, the county is at the top end of the slippery
slope it hypothesizes.

Insofar as the county's unspoken premise is that a violation of the 120-day
requirement can never warrant an award of attorney fees in itself, we disagree. The effect
of such a violation, and the resort to the mandamus process that may follow from it, is to
subvert the basic land use scheme that the laws of this state establish. It negates the local
decisionmaking role and responsibility that the statutes envision; it excludes local citizens
from participation in the decisionmaking process; it aborts the LUBA review process that
is designed to assure the correctness of land use decisions; and it subjects applicants to
delay and to the need for and expense of a judicial proceeding to redress the county's
unlawful dilatoriness. As noted above, one of the county's bases for challenging the
award of fees is that the "public did not benefit from being excluded from the land
development process." That statement is quite correct but, insofar as it ascribes the public
detriment to relators, it puts the shoe on the wrong foot. The cause of the effect that the
county decries was its own failure to comply with ORS 215.428(1).

The county argues next that the court applied an erroneous legal standard in
finding that the lack of an attorney fee award would deter others from asserting good faith
claims or defenses, when the concern of ORS 20.075(1)(c) is with whether an award
would have such a deterrent effect. However, ORS 20.075(1)(h) expressly empowers the
court to consider relevant factors other than those enumerated in the subsection's earlier
paragraphs. There is nothing to substantiate the county's assumption that the court
inverted the factor in paragraph (c), as opposed to considering another factor--encouraging the appropriate use of the remedy provided by ORS 215.428(7)--that has
obvious relevance under the circumstances.

Next, the county asserts that relators should not be awarded attorney fees
because they "participated in the land use process as long as [they] thought [they were]
going to win," then "scampered" to the courthouse after learning of the governing body's
intention to deny the application but before the decision was reduced to writing.
However, we find nothing blameworthy in relators' choice to continue with the regular
application process for a time--notwithstanding the county's dilatoriness--instead of
invoking a judicial remedy at the first possible opportunity. In any event, the county's
argument again places the shoe on the wrong foot. As the Supreme Court noted in
Compass Corp.:

"If a city could avoid the mandamus remedy by denying the application on
the eve of a court hearing, the incentive to make a timely decision within
120 days would disappear. Properly viewed, the approval action that the
court compels through mandamus is not a second decision by the city; it is
an action that the law requires as a consequence of the city's violation of the
120-day deadline." 319 Or at 545.

Finally, the county contends that the trial court abused its discretion under
ORS 20.075(2) in the amount of attorney fees it awarded. We reject that argument
without discussion.

"379-1.1 The purpose of the Mineral and Aggregate Overlay District
is to protect mineral and aggregate resources for future use, to provide for
the development and utilization of resources currently needed for economic
development consistent with the requirements of LCDC statewide Goal 5
and to regulate resource extraction and processing activities to balance their
impact on existing adjacent land uses.

"379-1.2 The intent of the Mineral and Aggregate Overlay District is
to:

"A. Provide for public awareness of existing and potential mineral
and aggregate resource extraction and processing activities;

"B. Establish clear and objective operational standards for the
extraction and processing of mineral and aggregate resources;

"C. Simplify the review and permit processes for mineral and
aggregate resource extraction and processing activities;

"D. Ensure the reclamation of lands after mineral and aggregate
resources extraction activities are completed;

"E. Balance significant Goal 5 resources when evaluating and
designating new mineral and aggregate sites; and

2. As relevant here, the term "District A" refers to the part of the overlay
district where quarry uses themselves are conducted. "District B" refers to adjacent areas
where the impacts of the uses might be experienced.

The term "primary district" refers to the rural residential zone, as distinct from
either subcategory of the overlay district. The term "district" that the code uses is
synonymous with the more commonly used term "zone."

3. Our summary of the trial court's conclusions entails a certain amount of
simplification. The court's determinations on the applicability of the section 379
provisions were not simply statements of legal conclusions but, rather, were embodied in
rulings on relators' motion in limine to restrict the evidence to the legal issues they
deemed to be relevant under the code. Although the relevant assignments in the county's
briefs are directed against the rulings on relators' evidentiary motion, its real target--like
the corresponding argument in intervenor's brief--is the court's interpretation of the code
and application of the code to the evidence. The county opposed the motion in limine but
ceased its participation in the trial after the court ruled on the motion. It offered no
evidence and objected to none.

In light of the procedural posture, it is questionable whether the county's
assignment is sufficient to raise the legal arguments it now propounds. However, given
the broader scope of intervenor's participation below and its assignment here, the fact that
intervenor and the county have joined in one another's briefs and that our decision of the
issues raised in the assignment turns mainly on the parties' legal theories rather than on
any evidentiary showings that the ruling on the motion might have prevented them from
making, the procedural approach that the county has followed does not impede our
analysis or affect our disposition. Specifically, because we conclude that the county's
underlying legal premises are incorrect, we need not decide whether the county has
preserved the challenges it makes to the evidentiary rulings that followed from the trial
court's different view of the legal questions.

4. Given that conclusion, we need not address intervenor's and the county's
implicit understanding that CDC 379-1 would bar the proposed use, if it were applicable.
But see Bennett v. City of Dallas, 96 Or App 645, 773 P2d 1340 (1989).

6. We reiterate that "deference," as we use the term here, is a principle of
review. The fact that the principle is inapplicable in a particular setting does not mean
that the adjudicative body may not consider the merits of the interpretation or other things
to which it is not required to defer. See, e.g., Gage v. City of Portland, 133 Or App 346,
350, 891 P2d 1331 (1995).

7. Intervenor joins in the county's assignments but makes no separate
arguments to the effect that the award of attorney fees against it was erroneous for
reasons independent of those that the county offers for reversing the award against both.